GENERAL LABOUR LAW UPDATE
Herewith a brief update with regards to judgments and awards handed down and now reported:
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General Dismissal Matters
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NUMSA v AVENG TRIDENT STEEL (A DIVISION OF AVENG AFRICA (PTY) LTD) [2021] 1 BLLR 1 (CC)
Automatically unfair (Dismissal/Retrenchment) – The respondent employer was compelled to restructure due to challenging economic times. Consequently, notices in terms of section 189(3) of the LRA were issued wherein it indicated that approximately a quarter of its workforce may be affected. The retrenchment process was facilitated.
Following the consultative process having been exhausted, the company retrenched those employees affected who had refused to accept altered terms and conditions of employment which had been proposed by the company as an alternative to dismissal (several affected employees accepted the changed conditions and remained in the employ of the company).
The union claimed that the dismissals were automatically unfair citing that the true reason for the dismissals was not Aveng’s operational requirements, but the refusal of the workers to accept a demand.
The Constitutional Court confirmed that the dismissals did not fall foul of section 187(1)(c) of the LRA and hence were not automatically unfair. Employers are not prevented from retrenching employees for operational reasons, provided they follow the requirements of section 189. The CC held that the mere refusal by employees of a proposed change and their consequent retrenchment, did not mean that the employees were dismissed for refusing a change.
AQUARIUS PLATINUM (SA) (PTY) LTD v CCMA [2020] 11 BLLR 1071 (LAC)
Unauthorised possession (Misconduct) – The respondent employee was dismissed after his employer learnt that he had arranged for the cutting, and removal of certain pieces of scaffolding, from the applicant employer’s premises, in order to utilise it at his private residence.
The arbitrating Commissioner found the dismissal unfair. So too did the Labour Court on review as, in its opinion, the employee had merely failed to complete/obtain relevant documentation. The Labour Appeal Court declared the dismissal fair:
“…In industrial relations parlance, theft is frequently described as misappropriation of the employer’s property…The frequent resort to the lesser offence of being in “unauthorised possession” of the employer’s property, an act of misconduct listed in many disciplinary codes, caters for cases where a thieving intention is suspected and requires of employees to ensure that they do not place themselves under suspicion, relieving the employer from having to prove a specific intent…To articulate the notion of a misappropriation of property that is free of dishonesty is a contradiction in terms…”
PICK ‘N PAY RETAILERS (PTY) LTD v JAMAFO obo MALULEKE [2020] 12 BLLR 1229 (LAC)
Dishonesty (Procedure/Charges) – The respondent employee, a cashier, was dismissed by her employer on a charge classified as “fraud”. In terms of the evidence led against the employee, resulting in her dismissal, the employee had breached one of the most pivotal rules in retail, namely that an employee cannot ‘serve’ themselves. In addition to serving herself, the cashier had recorded incorrect information on the system, and utilised a password of a colleague to fulfil the transaction, all of which was against the employer’s policy.
In challenging the dismissal, the union made much about the ‘reason’ for dismissal not corresponding with the charge levelled against the cashier. The LAC made short work of this and held that the conduct of the cashier was deceitful. The LAC consequently confirmed the fairness of the dismissal.
CENTRE FOR AUTISM RESEARCH AND EDUCATION CC v CCMA [2020] 11 BLLR 1123 (LC)
Bullying (Constructive Dismissal) – The two respondent ex-employees, who were special needs teachers, resigned from the employ of the applicant, with a months’ notice, and then lodged a constructive dismissal dispute citing that their continued employment had been rendered intolerable due to the bullying perpetrated by the school’s owner.
The Commissioner found that a constructive dismissal case had been proven, despite the fact that a grievance had not been lodged prior to the resignations, and that the behaviour displayed by the school’s owner was “shockingly unacceptable” and “despicable”. On the issue of the notice given, the respondents had said that they had done so out of concern for the children, which the Commissioner accepted. Compensation was awarded.
The applicant employer sought to have the Award set aside on review. The Labour Court dismissed the application and awarded costs on an attorney-client scale. It held that:
“…what the evidence discloses is a workplace operated by a narcissistic personality whose offensive and unwelcome conduct had the effect of creating a toxic working environment in which discrimination, degradation and demeaning behaviour became the norm. I have no hesitation in finding that the nature and extent of the workplace bullying suffered by the third and fourth respondents was such that…their continued employment was rendered intolerable.”
AYLWARD v WESBANK A DIVISION OF FIRSTRAND BANK LTD [2021] 7 BALR 723 (CCMA)
Bullying (Constructive Dismissal) – Following the applicant having lodged various grievances against his superior for “bullying”, the applicant resigned and claimed a constructive dismissal.
The Commissioner noted that after having lodged grievances, the respondent’s response was to charge the applicant for misconduct. The Commissioner noted that the applicant had “exhausted all internal remedies going as far as requesting a transfer and appealing to the CEO…” and that “it is apparent that Jelal [the superior] supported by the organisation did all he could to terminate the applicant’s services…”.
It was held that a constructive dismissal had been proven. The applicant was awarded 10 months compensation.
KHUMALO v GAME STORES [2021] 5 BALR 614 (CCMA)
Dagga (Dismissal) – The applicant employee was dismissed for lighting a “zol” during his tea break. The respondent employer has a zero-tolerance approach to narcotic or alcoholic substances at work.
In challenging the fairness of his dismissal, the employee (amongst others) stated that the rule was unreasonable as his ability to perform his duties was not affected by his use of dagga. The respondent was of the opinion that “due to the nature of their business there was the potential for harm through incorrect scanning of items creating a shrinkage problem” and that the rule was also to “ensure the safety of the team and customers”.
The Commissioner found the rule reasonable, and that dismissal was fair.
JOUBERT v WILDERNESS HOTEL (PTY) LTD [2021] 7 BALR 745 (CCMA)
Racist conduct (Dismissal) – The applicant was employed as a receptionist. He was dismissed for racially abusing clients who had refused to adhere to COVID-19 regulations.
The Commissioner held that whilst the applicant had been provoked by the clients, the behaviour of the applicant in using the “K” and “H” words was completely unacceptable. The dismissal was found to be fair.
BECK v PARMALAT SA (PTY) LTD [2021] 2 BALR 131 (CCMA)
Absenteeism (COVID-19) – When the pandemic was first announced, and the country placed on Level 5 of lockdown, the applicant requested leave to remain at home as the respondent was classified as an essential service provider and would continue operating. The applicant’s request to utilise her annual leave was declined; so too was her request to take unpaid leave.
The applicant stated that she feared infecting her young child (who suffers from asthma) as well as her ailing mother, whom she lived with. Following on the failure of the employee to work (i.e. she absented herself), the respondent dismissed her.
The Commissioner found that the blatant failure of the employer to consider alternatives and have due regard to the reasonable request from the employee, in the particular circumstances of the matter, rendered the dismissal unfair.
The employee was reinstated with back-pay limited to 1 month.
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Sexual Harassment
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PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA obo AG v DEPARTMENT OF AGRICULTURE, LAND REFORM AND RURAL DEVELOPMENT [2021] 1 BALR 76 (CCMA)
Discrimination (Sexual Harassment) – At a shop steward meeting of the PSA, held on the premises of the Department, during working hours, the applicant employee was sexually harassed by a colleague. The applicant reported the matter to the Department which stated that the applicant was to report the matter to her union to take action as it had occurred during a union meeting.
Aggrieved with the failure of her employer to take action against the colleague who had sexually harassed her, the applicant lodged a case of discrimination under the employment equity act and sought compensation for the harassment from the Department.
The arbitrating Commissioner found that the applicant employee was indeed sexually harassed, that the Department was liable due to its failure to take action against the perpetrator and awarded 10 months compensation to the applicant.
PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA obo EM v OFFICE OF THE CHIEF JUSTICE [2021] 1
BALR 83 (CCMA)
Discrimination (Sexual Harassment) – In yet another matter involving a government department, the applicant employee was sexually harassed by her superior. The applicant had lodged a complaint about the superior’s conduct; the employer however did not take any action against the superior.
The arbitrating Commissioner awarded the applicant employee R500’000.00 in compensation.
MCPHERSON v PRASA SOC LTD (METRORAIL WESTERN CAPE) [2021] 2 BALR 169 (CCMA)
Discrimination (Sexual Harassment) – The applicant had received an image on her cellphone from a subordinate. The image was of a motor vehicle touched up to resemble a naked woman. The subordinate had also sent the same image to 255 other employees of the respondent.
The applicant claimed that the image constituted sexual harassment, and that the disciplinary action taken against the subordinate was not sufficient. The applicant sought compensation from the respondent for the distress the sexual harassment had caused her.
The Commissioner found that the image did not constitute sexual harassment, and in any event, the applicant was unable to prove a causal connection between the image, and her hospitalisation.
The application was dismissed.
KHOZA v NATIONAL ENERGY REGULATOR OF SOUTH AFRICA [2021] 3 BALR 259 (CCMA)
Dismissal (Sexual Harassment) – The applicant employee was a senior manager in the employ of the respondent. He was dismissed for sexual harassment following an incident where he had stroked the thigh of a junior female colleague during a boardroom presentation.
The applicant denied sexual harassment and stated that he had merely tapped the colleague on her knee. The Commissioner found the version of the complainant more probable and held dismissal to be fair.
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BCEA claims and Applications
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WORKERS AGAINST REGRESSION obo MOTSHEGETSA v ATLAS FINANCE [2021] 3 BALR 332 (CCMA)
Remuneration (National Minimum Wage) – A dispute in terms of section 77A of the BCEA was lodged against the respondent employer alleging that the employer was not paying its employees the NMW.
The employer contended that the minimum wage included commission. The Commissioner disagreed and held that an employees’ wage is to be based on hour worked and excluded commission. The employer was ordered to comply in paying employees the NMW, to pay the existing shortfall to employees and was fined for its failure to comply with the NMW. All-in-all, the employer was required to pay R1’006’619.84.
GIWUSA obo KALAKE v FOURIE’S POULTRY FARM (PTY) LTD [2021] 4 BALR 384 (CCMA)
Remuneration (Transport Allowance) – The applicants sought an order that the respondent employer had been underpaying a transportation allowance, and that the employer be required to pay employees working on night-shift an increased transport allowance, relying on section 73A of the BCEA.
The Commissioner held that the reliance on section 73A of the BCEA was improper. The Commissioner further noted that the applicants had misunderstood the distinction between a ‘rights’ dispute and an ‘interest’ dispute. In any event, in terms of section 17(2)(a) and (b) of the BCEA, there was transportation available, and the employer was paying the employees a night-shift allowance (required by law) as well as a transport allowance (which is not required by law).
Insofar as the applicants sought an increased transportation allowance be paid, the Commissioner ruled that the CCMA lacked jurisdiction and dismissed the matter.
CONGRESS OF SOUTH AFRICAN TRADE UNIONS v BUSINESS UNITY SOUTH AFRICA [2021] 4 BLLR 343 (LAC)
Protest Action (LRA Section 77) – Prior to embarking on protest action to promote or defend the socio-economic interests of workers, a registered trade union or federation of trade unions, is required to follow the prescripts provided for in terms of section 77 of the LRA. Amongst the requirements, a notice must be served on NEDLAC stating the reasons for, and nature of, the protest action.
In the matter at hand, COSATU had issued notice to NEDLAC on 21 August 2017. No protest action followed. Further notices were issued along the same line; in some instances, protest action followed whereas on others, not. On 29 August 2019 COSATU issued a further notice to NEDLAC indicating that protest action would follow on 7 October 2019, relying on the original notice and its compliance with the prescripts of section 77, which had been issued on 21 August 2017.
Business Unity South Africa applied to interdict the protest action citing that it had not taken place within a reasonable period (referring to the notice of 21 August 2017). The Labour Court granted the interdict. On appeal however the LAC held that the ‘expeditious resolution of disputes’ principle which underlies labour law in South Africa, does not apply procedures governing protest action, and as such, the original notice issued had not gone ‘stale’. The protest action was hence permitted and lawful.
PROACTIVE EMPLOYERS’ ASSOCIATION OF SA (PEASA) v DIRECTOR: CCMA [2021] 5 BLLR 519 (LC)
Representation (CCMA) – The applicant is a registered employer’s association. Following various rulings where representatives of PEASA were denied the right to represent PEASA’s members at the CCMA, the CCMA and PEASA agreed to place a stated case before the Labour Court, for purposes of obtaining a declarator on the issue of representation in terms of the CCMA Rules.
It was established that the representatives who are appointed by PEASA to represent its members at dispute resolution centres such as the CCMA, are not employed by PEASA, but are rather “dispute advisors” who are not paid by PEASA but are appointed on an ‘ad hoc’ basis (and are not paid for their services).
It was noted that LabourNet is a member of PEASA who supplies some of its employees as “dispute advisors”, who are not remunerated for their services. In terms of the CCMA Rules, employers’ organisations are entitled to represent provided that the representative is an official of that organisation. The dispute advisors appointed by PEASA do not hold office in the organisation and are not officials.
The Court declared that in the absence of any election to office or employment as the secretary or assistant of PEASA, dispute advisors appointed by PEASA do not, by virtue of that appointment, have the right to represent members of the applicant in any conciliation or arbitration proceedings, in terms of CCMA Rule 25(1).
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Damages
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CHURCHILL v PREMIER OF MPUMALANGA [2021] 6 BLLR 539 (SCA)
COIDA (Delictual claims) – The appellant was employed by the first respondent as a Chief Director. During strike action at her place of employment, the appellant was assaulted by members of the trade union NEHAWU. The appellant suffered physical injuries and later developed PTSD. Ultimately, the appellant resigned.
The appellant instituted a delictual claim against her erstwhile employer for the injuries she sustained at the hands of the striking workers based on the failure of the employer to take reasonable steps to ensure the safety of its employees. The appellant claimed monies for medical treatment, general damages, as well as loss of income.
In resisting the claim, the respondent raised a special plea that such a claim was excluded in terms of COIDA. It was further argued that the respondent was not vicariously liable for the injuries sustained and that it had not been negligent.
The matter ultimately came before the Supreme Court of Appeal which upheld the appellants claim that the exemployer can be held liable in the circumstances of the matter. In its finding, the SCA held that the incident (i.e. the assault on the appellant) was “unrelated to the subject matter of the protest, much less to Ms Churchill’s work…assault on a co-worker is treated in many, if not most, workplaces as a serious disciplinary offence that may lead to dismissal. It is not something that ordinarily arises from a person’s employment…”.
The matter was remitted to the High Court for the issue of injuries and quantum to be determined.
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